Smith v R [2003] TASSC 56

Edwards v R (1993) 178 CLR 234; Zoneff v R (2000) 200 CLR 234, applied.

Judgment Number: [2003] TASSC 56

1 1 For the reasons expressed by Slicer J, I agree that this appeal should be dismissed.

2 The appellant was convicted of the murder of his wife's former lover. The affair was confirmed by the wife on the day before the act of homicide. The Crown case was that on 25 September 2001, the appellant drove to the home of the deceased and, following a confrontation, called for an ambulance to tend to an injured and unconscious person who died some days later without regaining consciousness.

3 There was no dispute that the appellant had been present at the house and that the injuries suffered had been caused during the course of the confrontation. The issues at trial were ones of intent and self-defence.

4 In support of its case of murder, the Crown relied upon the following matters:

(1) The cause of death was a brain injury through fracture of the skull which required the application of considerable force.

(2) Forensic examination of the scene showed blood patterns in two places and a pooling of blood on the floor which, given the injuries to the deceased, were consistent with his being kicked or violently hit whilst on the floor.

(3) The absence of injury to the face of the appellant and the identification of blood on his boots.

(4) The statement of the appellant to the emergency service stating the reason for the call to be "an assault. He's been hit around the head", and his subsequent response to enquiry by an ambulance officer that "All you need to know is this is an assault" and that he had effected the assault.

(5) The responses to an attending police officer that "I biffed him" and to the observation "You must've had a pretty powerful reason for doing what you did", that:

"The cunt's been shagging my wife in my own home ... I only went to speak to him. Next thing you know it's all a blur. I saw him lying on the floor. I thought, fuck, that's not good, so I rang triple zero."

(6) Answers given during the course of a recorded interview conducted some three hours after notification to the ambulance service. During the interview, the appellant suggested that the injuries were caused during a consensual fight and that he did not recall the deceased hitting the wall "with any force".

5 The appellant was a former police officer and part of the Crown's contention was that the time elapsed before interview enabled him to present a coherent, but self-serving version of events during the interview.

6 The appellant gave evidence at trial. He provided more detail of the events than given during his interview, but maintained his version of a consensual fight, reactive blows, and a fall to the floor. He advanced a possible explanation for the presence of the blood on the walls as exhalive breath on the part of the deceased.

7 Central to the issues of intent and self-defence, was the credibility of the appellant which, in turn, depended on his account given to police and an assessment of his testimony at trial. The Crown's position was that the account given during the interview was self-serving and his evidence at trial ought be disbelieved. However, it was never part of the Crown case that lies could be shown to either corroborate its case or evidence consciousness of guilt.

"2 That the Trial Judge erred in law in failing to direct the jury that in the event that they decided that the appellant had lied in either his video recorded interview with Police or in his evidence given during the Trial then they should not use such lies as being probative of guilt unless they were also satisfied as to the pre-requisites set out in those authorities relating to the use a jury can make of such lies"

and such error is said to render the verdict "unsafe and unsatisfactory".

9 In his written and oral submissions, learned counsel for the appellant suggested that the direction ought to have been given to prevent impermissible reasoning on the part of the jury in the terms that:

(1) the making of a false statement did not mean that the appellant was guilty, nor did it constitute evidence of guilt;

(2) the making of a false statement did not of itself negate the reasonable possibility that the appellant might have acted in the manner stated in his interview and at trial;

(3) persons might make false statements for reasons other than that of consciousness of guilt;

(4) it must not, as a consequence of the effect of the closing address of counsel for the Crown, engage in the reasoning process that the appellant made the false statement because he knew that if he were to tell the truth he would implicate himself in the crime of murder.

10 In some cases, a lie can be regarded as akin to an admission of guilt or a statement against interest and should be seen as forming part of the confessional material (Edwards v R [1993] HCA 63; (1993) 178 CLR 193) or as a psychological consequence or manifestation of a guilty mind (Woon v R [1964] HCA 23; (1964) 109 CLR 529, especially Windeyer J at 541 - 542; Zoneff v R (2000) 200 CLR 234, Kirby J at pars61 - 62). The characteristic of "consciousness of guilt" has been criticised as anachronistic (R v White (1998) 125 CCC (3d) 385) but the term encapsulates a methodology available to a prosecutor, and hence a jury, in the proof of a criminal cause provided that the "fact finder" does not engage in a process of circular reasoning. But before a lie can be used in furtherance of the prosecutor's case, it must be identified and established by evidence. Both the use and its associated complexity were stated by the High Court in Edwards (supra) when, in their joint judgment, Deane, Dawson and Gaudron JJ said, at 210 - 211:

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest (See M v R, unreported, Court of Criminal Appeal of South Australia, 18 August 1993, at pp4-5.). And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it (See, eg, Credland v Knowler (1951) 35 Cr App R 48; Tripodi v The Queen (1961)104 CLR 1, at p10; Buck (1982) 8 A Crim R 208, at p214; Reg v Preval (1984) 3 NSWLR 647, at pp650-651; Reg v Evans (1985) 38 SASR, at pp348-349; People v Showers (1968) 440 P 2d 939, at p942.) and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realisation of guilt and a fear of the truth'.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt (See, eg, Lonergan v The Queen (1963) Tas S R 158, at p160; Broadhurst v The Queen [1964] AC, at p457.) A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.

If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms."

11 The lie must be extrinsic to any evaluation of the testimony of an accused given at trial. There has always been a distinction between "credibility lies" and "probative lies" (Jeffrey v R [1991] TASSC 114; [1991] Tas R 336; R v Toia [1982] 1 NZLR 555; Zoneff v R (supra)). Misuse of a "credibility lie" by elevation to a "probative" one can result in miscarriage (Zheng v R (1995) 83 A Crim R 572). When a lie is averred or relied upon to attack credit, it cannot be used to strengthen the prosecution case as either corroborative or evidence by analogy, of admission and accordingly requires no special direction (R v Renzella [1997] 2 VR 88). In that case, the Victorian Court of Appeal in the joint judgment of Winneke P, Charles and Calloway JJA stated a series of principles relevant to this appeal in the following terms at 91 - 92:

"2 In most cases, as Cooke J said, lies go only to credit. As his Honour explained, 'This is no more than a matter of common sense. They may help the jury to decide whether the evidence for the prosecution should be preferred to an account put forward by the accused.' A direction in conformity with Edwards v R [1993] HCA 63; (1993) 178 CLR 193 ('an Edwards direction') is not necessary in such cases.

3 There is a natural tendency for a jury to think that, if an accused is lying, it must be because he is guilty. Although it was said by the Privy Council in Broadhurst v R [1964] AC 441 at 457 that it is the duty of the judge to make it clear to the jury that that is not so, there is no invariable rule of practice in Victoria to that effect where lies go only to credit. That was recently reaffirmed by Hayne JA in Morgan's case at 6.

5 In Edwards v R Deane, Dawson and Gaudron JJ, also pointed out, at 208, that the telling of a lie will ordinarily do no more than affect the credit of the witness who tells it. That is equally true of a lie told by the accused.

8 Accordingly it is a misdirection, in a case where lies go only to credit, to tell the jury that they form part of the Crown's circumstantial case or that the jury may regard them as corroboration or as affording 'confirmation' or 'support' for the testimony of a witness whose evidence stands in need of a scrutiny warning: see Miletic's case at 604-5. A lie cannot be part of a circumstantial case or corroboration or afford such confirmation or support unless it goes beyond credit and constitutes an admission against interest.

9 An Edwards direction is required where the Crown invites the jury to use a lie told by the accused in any of those ways or simply as evincing a consciousness of guilt and the lie is of a kind which could found an admission. The requirement for such a direction is distinct from the standard of proof. The direction is required because the lie is relied on as an implied admission, whether or not it is an essential part of the Crown case.

11 There are some cases where, although the Crown does not rely on lies as implied admissions, there is a danger that the jury may regard them in that light. Where that is so, the judge should direct the jury that the lies go only to credit and are not to be used as evidence or implied admissions of guilt. It is not for the judge to put the Crown case in a different way, and accordingly he or she should not follow the alternative course, apparently countenanced in R v Goodway (1993) 98 Cr App R 11 at 15 and 17; [1993] 4 All ER 894, of giving an Edwards direction in case the jury chooses to use the lies as doing more than merely reflecting on the credibility of the accused.

12 An Edwards direction is usually essential if the Crown invites the jury to treat lies by the accused as part of a circumstantial case, as corroboration, as confirmatory or supportive material or simply as evincing a consciousness of guilty, but an imperfect Edwards direction will not inexorably lead to a conviction's being quashed: see, for example, R v Totivan and Dale (unreported, Court of Appeal, 15 August 1996), at 12-13."

12 Renzella has been affirmed by the same court, differently constituted (R v Erdei [1998] 2 VR 606) and a subsequent attempt made to simplify an apposite direction (R v Mazur [2000] VSCA 111; (2000) 113 A Crim R 67). The giving of a "lies direction" might give undeserved prominence to a difference of, or inconsistency in, evidence to the prejudice of an accused or elevate that difference to a judicial suggestion that the lie has been made out (Zoneff (supra) at 20).

13 Counsel for the Crown at trial clearly expressed to the jury in his address and cross-examination of the appellant that he challenged both the accuracy and credibility of the accounts given during interview and at trial. But the form of attack was internal to the trial process. He was inviting the jury to disbelieve the appellant, not seeking to use a lie already established as a basis for disbelief. The appellant contends that even if such was counsel's intent, the cumulative effect of the form of attack required a direction against the adoption of circular reasoning. It is necessary to examine the use of inconsistency or improbability to ascertain whether a lie, irrespective of claimed use, can be identified, which might have led to a risk of improper use on the part of the jury.

14 In his opening statement made at the commencement of the trial, counsel for the appellant outlined the defence position in relation to the contents of the recorded interview in the following terms:

"But there's no doubt there was an interview that you will no doubt find extraordinarily frank and there is no doubt as the prosecutor has asserted that Mr Smith says look some of this is a blur ...".

The appellant in that interview denied the accuracy of the conversation with police officers said to have occurred before arrival at the police station. However, he agreed that he had told them that he had hit the man who subsequently died. He told police that:

"I, last night um I became aware um that my wife was having an affair with Grant GARWOOD. In [sic] confronted my wife about this, we spoke um, as you can imagine, it was a very traumatic night, um, I I'm I'm very very angry um that this has happened um, I today I you know, I worked up the courage I suppose, to confront GARWOOD um, and basically just say, 'Stay the hell away from my wife'

It's my family you know and gone to the door, as I pulled up he was in the loungeroom, he's he's come to the door, the door was open, um it was 'G'day, g'day' you know and then I said, 'Listen you arsehole' basically you know

'What the hell's goin' on, what are you doin' what are you playing at?' And um he was very much um, it started almost like he's denying it, you know, I dunno what you're talking about, was his reaction, um I pushed him and he went back into the hallway, he's he's sort of come up and then *** the very next thing I know ah it was just like that where it's a big massive tangle, flaying arms and legs and feet and heads an' and um we were in his bedroom an then then he wasn't moving and he was bleeding from the nose and and the mouth and and ah, he he was quite clearly he was unconscious, um I know I hit him, I don't know how many times I've hit him, um but but I just it only just it was in the blink of an eye, it just happened like that, it was so quick from push, shove and and then it's there and I I really don't know, um anyway I suppose for a minute or two, you know I I I tried to get a response out of him, I put him into the coma position um, I I got a towel out of the bathroom and put that under his head, because he was bleeding and at that point, I was really concerned that he was seriously hurt and I've run [sic] triple 000, um no I didn't, sorry 'cause I didn't know the address, I walked down to the kitchen and there was a phone bill, there was a phone bill on top of his freezer, it had his name and address so I knew."

and "... I certainly didn't intend to hurt him like he's been hurt", but that during the confrontation "... in just a blink of an eye, it got out of hand, fists were flying and then it was over, um just".

15 He agreed that he had punched the other man who had put up his hands in a boxing stance and:

"... I can't analyse it because it it just happened in the blink of an eye, it really did, um it's not like I've I've lined him up against the wall to to thump him or anything like that, it just, you know like, if I hadn't seen his head, I you know, and his face and the fact that was bleeding, I I couldn't even be sure that I'd hit him, but I know I did there's no denying that"

"We were kickin' and scratchin' and clawin', but yeah, as far as I know, he just um yeah

I I dunno, because I was swinging, I think I I know I I can remember arms and and legs and feet, you know, flailing you know, flailing everywhere, it was just a tangle and then we hit the ground um, I mean, I think I punched him while we've been on the ground too and

Any idea how many times you would have connected with him, it would've been one or two or would it have been ten or twelve, have you got an idea

Right, and are they close in punches or did you manage to get back and

... yeah it was more like wrestling than um, yeah like

I notice you've got an injury on your hand there, I'll just get you to hold that up for you just so we can get the camera to zoom in and have a look at that. That's a fairly fresh wound there, is that as a result of today

No, I don't believe I got hit in the head, no I I might've got kicked around the ribs at one point um, no I no I really don't think I suffered any injury, no

... there is some suggestion that maybe something other than fists being used, so I'll, you said to me, it's only your fists

I'll say look we were trashing around and kickin' about and carryin' on um, you know he might've got hit with a knee or a boot or something like that, what I am getting at is

16 He said that he had been suspicious of his wife for "a little while" but that she had only confirmed the existence of an affair the night before the confrontation. At trial, the appellant told the jury that his suspicions had been aroused by his discovery of contraceptive tablets in the bedroom which, given his vasectomy, he believed to have been unnecessary. As a result of those suspicions, he had installed a recording device to the home telephone connection.

17 He agreed that his own hand had been injured during the confrontation, but not his head, and explained the absence of blood by his having washed before the arrival of police. He denied using a weapon and provided the following further details of the confrontation:

"This um, I washed me hands while the ambo was there

Did you have blood anywhere else, did you did you have any on your face, did you have to wash your face, or

No, no I didn't wash my face at all, just my hands um I I had blood on my hands

Just back, um would you have, did you kick Grant at all

I may have done, I, as I said, it was that for a split second there it was a mass of arms and it was just crazy

If you if you've kicked him, would you have kicked him in the face at all, in the head, face

I don't think so, I don't think he, I know Grant has gone backwards into the room and he's dragged me down there, whether I've I've sort of managed, oh I dunno, stay on my knees

Sort of kept some balance and then he was unconscious

So possibly from what you're saying, if he's dragged you back you've stayed on your knees

How long did the actual, from the time you first pushed him, to the time where you stopped and realised he was unconscious, what sort of time frame

As I said before, I I think it was a blink, eight, ten seconds maybe at the absolute most

... that, you spoke to me a moment ago and said that you could possibly have kicked him

Look it's a possibility, I don't recall doing it and I certainly didn't kick him deliberately, but what I'm sayin' in the flail of arms and things it's possible

Once he went to the ground um I I have I've hit him once, I I remember that and then he went unconscious

I know I didn't, I wouldn't kick a man when he's down, I would not do that, it was a, I punched him when he was on the ground and that was probably the to my recollection, that's the last blow, but I I was like on one knee or on both knees over him at that stage, I was not pounding on his arms or anything, I was, I just know I I

Look it's possible, it's possible, I don't believe I did, but yeah, I know I certainly didn't hit him with anything else and I don't recall him hitting the walls with any force um, as I said, it was just a mad scramble"

18 Counsel for the Crown challenged the accuracy of that version during his cross-examination of the appellant and in his closing address. But no lies were apparent in the account. Rather, counsel attempted to show, in his cross-examination, inconsistency between the answers given during interview and the account given at trial. The following exchanges between counsel and the appellant are relevant to the determination of this appeal:

"At the time I was answering those questions I believed I was answering honestly. I believed I was being open and just laying all the cards on the table for police. I was telling them what had happened, how it had happened. I was just being open.

No, no. I'm asking you about your evidence-in-chief Mr Smith. Now that evidence-in-chief had been rehearsed hadn't it? ... I've gone over my police interview - rehearsed-

Thinking about what you were going to tell this Court? ... I knew what I was going to tell this Court, I was going to tell this Court the truth.

Yes but you didn't tell this Court that you were angry? ... Sorry sir, I believed I did. If I'm mistaken in that well-

Yes you are telling me how it happened. We've agreed that you've been trying to help the police and before you took part in the video interview on the very day of these events, you'd had a good couple of hours, probably three hours to think about things, hadn't you? ... I know I was left in a room for some time. I can't recall specifically how long but I was left alone in a room for a long time.

So you know that you got at least a couple of hours on your own thinking about things, thinking about what you are going to say? ... Two hours, and yes I was thinking about a lot of things.

But at the moment I wanted to ask you about the interview that you took part in after two hours to think about things. And having told us this morning that you wanted to put all your cards on the table, and be completely frank. You told the police in that interview-

As I pulled up he was in the lounge room and he's come to the door. The door was open it was 'gooday, gooday' you know and then I said 'listen you arsehole' basically you know, 'what the hell's going on or what are you playing at'. And he was very much, um, it started almost like he's denying it you know, 'I don't know what you're talking about' was his reaction and I pushed him and he went back into the hallway."

Right. Now that was what you said to the police, isn't it? ... They are the words, I think you have changed the meaning with you inflection Mr Ellis, I didn't say it like that, our voices weren't raised.

Well we can talk about the inflections, let's talk about the words -

'I don't know what you're talking about' was is [sic] reaction, I pushed him and he went back into the hallway, his fists have come up and then the very next thing I know it was just this, a big massive tangle.

Mm. Is that right Mr Smith? ... That's what I've said in the interview, sir, yes.

Well Mr Smith that's different isn't it to what you say now? ... I don't know whether - I don't believe it's different.

Don't you? ... I believe that my recollection after that day as I've said I have thought this over and over and over I've been through it, and I believe I have a more accurate recall now of what's actually gone on, I've relived it every single day.

But you had two hours - oh your memory's improved now has it than what it was two hours after the event? ... At the time of that interview I was extremely confused, I was distraught, I wasn't thinking straight.

Mr Smith your account to police you agree is that you've come up and it's straight into it, you pushed him and he's gone back in the hallway. There's no mention of this "I want you to see Belinda and get a transfer and stay away"? ... There wasn't, they were asking me about a fight, about an assault.

Oh so they didn't ask the right question Mr Smith is that it? ... You'll have to ask them that - I answered the questions as honestly and as openly and at the time I gave a frank desc - what I believed to be a frank description of what's happened.

Why is it in your description of what's happened Mr Smith you haven't mentioned that it was upon you demanding that he apply for a transfer and to see the principal to do so that it was then that his fists came up and his head bobbed down. Why was that not said, you agree it wasn't said don't you? ... Yes I don't believe it was said to police.

Why wasn't it. Didn't they ask the right questions? ... I have no idea, I have no idea why I didn't include that at the time.

Is it because Mr Smith the version that you gave them at the time was more accurate. That you were straight into the physicality and as soon as he put his fists up defensively you were into him? ... That's not correct.

So that bits faded has it and other bits have come into your memory? ... No I just didn't use that word in my evidence.

No I know you didn't Mr Smith but weren't you trying to give us a proper account of what happened? ... Yes I was.

You're the only surviving person out of this? ... Yes.

So is it your memory that you didn't say such a thing? ... I reckon I have said it.

Or is it that you're trying to downplay your belligerence and aggression? ... I wasn't belligerent and I wasn't aggressive when I went there.

But your story today is the story of a person who is not belligerent and your story to the police is of a person who was? ... No. I think you have misinterpreted that.

Because from then on, your account to us today is you thought you were under attack? ... If was a fight. I was trying to punch Mr Garwood and Mr Garwood was trying to punch me.

Mm. I suggest when you said to police, "it was a tangle, there were arms and legs flying everywhere", they were your arms and legs flying everywhere, Mr Smith? ... My arms and legs were flying as were Mr Garwood's.

Yeah. So you hit him and what you tell us today is self-defence, don't you? ... I don't know whether it amounts to self-defence or not. All I am saying is I thought he was going to punch me and I punched him first.

Right. Did you tell the police that? ... No, I didn't.

Why not? ... Well I thought I had covered the story - his fists came up, I punched him. I mean, it was - that is what happened.

But you were laying all the cards on the table? Mm? Laying all the cards on the table? ... I believed that I had given the police an accurate account of what happened. Yes, it was.

But not that card that you thought you were about to be punched.

When you said to the police and you were trying to help them and lay all your cards on the table and it was two hours after the event didn't you say this, "I don't recall him hitting the wall with any force". Weren't they your words to the police, was that true? ... At the time I believed that to be the best of my recollection, yes sir.

But it's in fact picked up again now has it? ... I believe that as I've thought this over and over my recollection is more accurate now.

Oh I see so it's just a matter of thinking of what you wish you think you remember or trying to fit it into the injuries that you knew were caused to Mr Garwood? ... I don't believe so sir.

Not designed for that at all? ... I don't believe so no.

It's just an improvement in your memory over time? ... Yes, I guess you could call it that. It is - I have been trying to examine it, piece by piece.

So you've not told any of the medical people, the 000, you've not told the ambulance people who arrived, you've told them that, "All you need to know is that this is an assault"? ... And again I can't recall my specific words but I know at some point I've made reference to the fact that his breathing was right.

You told us at the very start this morning, at the very start you agreed the medical people needed to know precisely what they were dealing with when they came there? ... Yes sir.

That's all it could have been then - that proves it does it? ... No it doesn't prove it but in the-

Why not tell the ambulance people about it, they needed to know precisely what they were dealing with? ... I don't know, I have no answer.

Well I tell you what the answer I suggest, Mr Smith is, it's because it didn't happen, that's the answer? ... It certainly-

Because you've made it up to try to explain the blood splatters on the wall, that's the answer isn't it? ... No sir, that is not correct.

Why didn't you tell the police about it? ... It didn't occur to me."

19 Counsel made use of inconsistency, inaccuracy and improbability in his closing address in the following terms relevant to this appeal:

"You're perfectly free to reject much of what Mr Smith says, you're the judges of the facts, you don't have to take his word for it whether that's the word that he gave to the police two hours or more after the events or whether that's the word he's given to you here. They say that history's written by the winners, that means that when there's no one else around to give the other version then that's the version that tends to prevail, but it doesn't have to happen in a court of law, we're not bound by the murderer's word as to what happened.

Mr Smith says that he didn't know that. Maybe he did, maybe he didn't, it's a funny thing not to know, I suggest to you, but he didn't. But a lot of people wouldn't go to that extent, would they, they'd ask their wife, but not Mr Smith. Is he sneaky? Maybe. It doesn't make him a murderer, but it's a pattern of his conduct that he seems to be able to store things up until he's ready to tell them, until he's got it straight with himself. It's got to be the case, I suggest, ladies and gentlemen, that he was angry at this discovery and yet he didn't tell us that when he gave his evidence in court, he didn't tell us that until I asked him.

He went to 8 Columbus Drive, he didn't phone ahead, he turned up. In this Court, months after the event, he tells you a version which is different to that which he told the police even after two hours of thinking of it. To the police he said he got up, he came up and he started talking in the driveway, bowled up, pushed him in the chest as soon as there was a denial and it was on. That's not his version to us. His version to us for the first time is that he went up, there was a push, he stepped back, there was more conversation, 'I put it on him that I wanted him to apply for a transfer and stay away from my family and so on, I wanted him to see Belinda, the principal', and at that he says Mr Garwood put up in a fighting stance and looked as if -

To me, he was bobbed down and looked as if he was about to throw a punch at me.

But go further back and you get a clearer picture of how this version has emerged with this man. The first four people he spoke to, the first four, when things were the freshest, when his blood was perhaps still up, although he doesn't sound it, he feels justified in what he's done before he learns the full consequences. He says, as a former police officer of thirteen years, when he calls the ambulance, 'It's an assault, I assaulted him, he's been hit around the head, hit around the head'. The ambulance officer comes - officers, I'm sorry, and he says, 'All you need to know is this is an assault'. He's taken in the police car and again there's no mention of a fight, there's no mention of self defence. He's asked by Detective - sorry, Acting Sergeant Kirkby:

You must have had a powerful reason for doing what you did?

The cunt's been shagging my missus in my own house.

That's why he did what he did, that's why he went up there and at the first opportunity - maybe Mr Garwood did deny it, it was after all over, but at the first opportunity he's into him. Surely that's how it's happened, ladies and gentlemen, that's why a man of his training and experience says there's been an assault rather than there's been a fight. But I suggest that he knows enough at that stage to know that he's done something - perhaps he's done something more than just a fight, that he's hit Mr Garwood with considerable force at a time when Mr Garwood was not posing any danger to him at all, nor could he, that he's hit or kicked him. But Mr Smith has kept that hidden, even at that point. He owns up to an assault. He says, 'I've done it, I've assaulted him because the cunt's been shagging my missus in my own house', my house, my missus, my, my, my. And he's got a little bit of time to think about it, he's got two hours and he starts into an interview, and the version's that, it's straight up, straight into it. 'He denied it, straight into it, I pushed him, his hands came up', and you'll see on the video this is it. Well you've come into someone's house, barrelled him up straight away, pushed them, what are they going to do? But that's all the opportunity he wanted because the rage that he had stored up erupted. He had the advantage of surprise, he knew that, that's why he took steps not to alert Mr Garwood that he was coming, because he wanted to keep that advantage. And he maintained that when he got into Mr Garwood with fists straight away. There was no bobbing down, there was no 'I was scared'. He was sure he was going to throw a punch. If he had been why didn't he say so? Why does he say so now months after the event? Because of the consequences.

They were in a very enclosed area, ladies and gentlemen, if there's wrestling and scragging around as he says you'd think there'd be more disturbance, but there isn't. If it was a fight you'd think there'd be some injury to Mr Smith, but apart from the knuckle on his hand there's nothing. This stuff about oh a sore rib, he didn't say that to the police. 'I'm a bit sore in the rib', he said, 'I might have been kicked', but to us it's, 'Oh the doctor poked it, oh it was very sore', giving his counsel the impression it was broken ribs perhaps that were going to be looked at, but no, there's nothing of that.

When he comes to give us his version here they're bouncing off the walls with great force, crashing into the walls, because he knows at this stage that Mr Garwood has sustained awful injuries that could only have come from considerable force and he is making up a story, that's the long and short of it.

There is no smearing of the walls, ladies and gentlemen. When he spoke to the police, even after two hours of sitting on his own and stewing and thinking about it:

And he's told us, and I think you can accept this, that he was face to face with Mr Garwood throughout this, face to face, and there was no point at which Mr Garwood slumped, as you would think you would, wouldn't you, if you had sustained such an awful injury.

On his version of events it couldn't have happened, it couldn't have happened, but it did happen.

That's the evidence in this case, it did happen. It happened with sufficient force not just to break his skull, but something happened with sufficient force to break up his brain, to actually injure the brain.

Is Mr Smith likely to own up to this, of course not, who would? It's a shameful, terrible thing to have done. It's something that he knew would cause death, he probably intended to at the time in this rage. He said to Mr Rowe, 'It's all like a dream'. He didn't use these words, he used the words, 'all like a dream'. Of course it is, when the red film comes down in front of your head, when all the frustration and anger that he's had has built up and he's got the better of this man who's caused him this grief (inaudible phrase) Hasn't he done that? There's no other explanation on the evidence. But as I say, maybe it's an almighty thump. Same thing, he's told us he's given him a thump while he's down on the ground but he says it's to the nose, that couldn't have caused the fracture, a hit to the mouth couldn't have caused the fracture. Maybe it - maybe you can hit someone hard enough to break their skull that way, leave something on your knuckle, leave something on the head, there was certainly some need apparently for Mr Smith to start washing his hands as soon as the police are turning up, washing his hands, but as I say, you don't have to think beyond reasonable doubt it's one or the other, but if you think it's one then I suggest it's murder. His whole pattern of minimising things from assault, the cunt's been shagging my wife, to this self defence that he's on about is an intelligent man seeking to get away from the consequences of his actions when he was in this rage.

Mr Garwood's hands have not got a mark or an injury on them, there's not an injury worth even talking about to Mr Smith yet you're expected to think that this is the man he was defending himself from. He's gone up there, he's flown into a rage, he's got the better of Mr Garwood, he's given him one to go on with. Having done that, and he's come now - well who knows, maybe he thinks he didn't do it, but he's come to this Court to tell you things that just don't fit with the evidence, his version of events, and he's made things up. This explosive cough, he's heard Dr Kelsall say that this can happen. He's got blood splattering on two walls, how does he explain that? The explosive cough. A cough that's apparently - okay it's explosive breathing, not even a cough, it's come from Mr Garwood's mouth or head with sufficient force to go onto the north wall, come down, and then gone - somehow, even though he's face up, onto the other wall, straight on. Something that he never told the ambulance people about even though he tells us it was an amazing phenomenon, haven't heard anything like it, didn't know what that could be. It's just not true.

You might have thought there was a lot of cross-examination about things that aren't to the point, you know, well who cares whether he hid the tape or not, the point is that he doesn't tell the truth, that he is glib, that he covers up, that he never told the truth right from the start because he'd done the shameful last one to go on with. The most he could bring to say the truth was it was an assault, which it undoubtedly was. He didn't mean a fight. Then it became, 'Oh Mr Garwood was into it'. Funny thing, in the interview he says, 'It was' - for ages he says in the interview, 'It was arms and legs everywhere'. It, it, it. It isn't right until the end that he actually says that Mr Garwood did anything. So is it not this dream with this red rage coming down over him and he's seeing himself, flailing arms and legs and limbs, is that what he means by 'it went crazy', I went crazy. 'It was flailing', I was flailing. That's what he means, I suggest.

And the story develops within the interview and the story develops further here, but if we go back to what he first said and if we go back to the real evidence I suggest you'll be in no reasonable doubt that he has, with force and intent, hit a man who couldn't defend himself and caused his death."

20 It is not possible to discern from those exchanges or the closing address, any identified lie other than a challenge to the truthfulness of the accounts given by the appellant. The issues subject to attack or criticism can be identified as:

(1) the appellant had rehearsed his explanation provided to police at interview and had failed to give a full explanation for the events;

(2) his explanation for using the word "assault" to the emergency service and ambulance officers was a correct description of what had occurred and his subsequent explanation for the use of the term ought be disbelieved;

(3) his denial or failure to recollect an act of kicking was contradicted by the forensic evidence and in particular the last blow inflicted on a helpless man was "shameful" and was thus denied;

(4) the claims of self-defence in the course of a consensual fight were weakened by his failure to claim "fear" and were in any event not to be believed;

(5) his answers given as to the circumstances surrounding the installation of the recording device were not honest;

(6) his failure to recollect the time when he discovered the contraceptive tablets amounted to evasion.

21 None of these matters constitute "probative lies". They could not be said to be lies unless and until the jury failed to accept the appellant's account as accurate and truthful. Inconsistency and improbability internal to the account might have been used by the jury as a reason for not believing the appellant, but no particular statement, external to that process or methodology, could be used as a commencing point to the line of reasoning. The prosecutor had been unable, other than in one instance, to identify any particular statement, demonstrate its falsity and use it as a vehicle to found his attack. The one instance identified was the statement made by the appellant during a telephone call whilst with the police to his secretary when he said that he would not be coming into work because he was "snowed under":

"And he basically said to whoever he was talking to on the other end of the line that he was a bit snowed under at the moment and that he wouldn't be into work.."

That statement could be said to be highly accurate, but irrespective of truthfulness, its import could not be elevated to that of a lie told to avoid detection or as capable of constituting corroboration of the Crown case.

22 The nature of the material said to warrant the giving of an Edwards direction is similar to that considered by the High Court in Zoneff (supra). In relation to that type of material, Gleeson CJ, Gaudron, Gummow and Callinan JJ said in their joint judgment at pars16 - 20:

"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards [1993] HCA 63; (1993) 178 CLR 193 at 211 ,'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged. See Osland v The Queen [1998] HCA 75; (1998) 73 ALJR 173 at 183 per Gaudron and Gummow JJ; [1998] HCA 75; 159 ALR 170 at 182. This was an unusual case. The prosecutor did not, during cross-examination, in terms, or in our view, by implication, suggest that any answer given was a lie, told out of consciousness of guilt (a phrase we use for convenience). Moreover, as the prosecutor did not address the jury, no such suggestion was made at any later stage of the trial.

In this Court the respondent prosecutor reiterates that no reliance was, in the courts below, or is here, placed upon the answers given to found a submission that the appellant lied, out of a consciousness of guilt.

It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant."

23 In this case experienced counsel for both parties neither sought nor attempted to argue against the giving of a direction. It was plainly not warranted by the evidence and for the learned trial judge to give such a direction on his own initiative would "have had the effect of raising an issue or issues upon which the parties were not joined". The giving of the direction would have added an unnecessary complication to the task of the jury and might, by its making, have identified the issue in a way prejudicial to the defence.

25 I agree that the appeal should be dismissed, for the reasons given by Slicer J.